The Preservation Budget Squeeze
You are the e-discovery lead at a mid-sized manufacturer defending a wrongful-termination suit. The custodian is a regional sales director who left 14 months ago. IT reports that her laptop was wiped on departure per standard policy, but her mailbox (Exchange Online, 50 GB) and OneDrive (12 GB) remain in a litigation hold. The plaintiff's counsel has served a broad request covering 'all communications regarding the sales director and any employee she supervised.' Your outside counsel estimates 60 custodians could be relevant but only 9 are clearly in scope. The case is valued at $400,000. Your client wants a defensible plan that keeps costs under $75,000 for collection and processing. The judge is known for strict proportionality enforcement and has sanctioned parties for over-collection.
1. How should you scope the custodian population, and what is the defensible rationale?
Read the worked answer
Start from the claims, not the request's breadth. The request targets the sales director and those she supervised, so the defensible universe is: (1) the director's own data, (2) her direct reports who had a documented supervisory relationship during the relevant period, and (3) HR and her manager. That is the 9 clear custodians.
For the remaining 51, run a custodian-identification exercise: pull the org chart, the director's mailbox for distinct correspondents, and HR records of who reported to her. Anyone with meaningful volume (e.g., >20 messages) is a candidate. Document the methodology in a memo - courts assess process, not just outcome. Offer to add custodians if the plaintiff articulates specific relevance. This is the proportionality argument under FRCP 26(b)(1): burden vs. benefit, and it is your best defense if challenged.
2. The client asks whether to skip collecting OneDrive for the 8 non-director custodians to save money. What do you advise?
Read the worked answer
Don't skip based on cost alone - skip based on a documented, defensible relevance assessment. Run a targeted search of the 8 OneDrive accounts for the director's name and key terms before deciding. If hits are negligible, document the null result and exclude. If hits are material, collect.
The risk math: $400K case, $75K budget. A motion to compel or spoliation sanction could exceed the savings from skipping 8 accounts. But over-collection also exposes you to the judge's proportionality sanctions. The middle path - a defensible cull with a documented record - is what protects the client. Never let a budget constraint silently become a preservation gap; make the trade-off explicit in writing to the client so the decision is informed and documented.
3. The plaintiff later moves to compel the wiped laptop. How do you respond, and what does the record need to show?
Read the worked answer
The laptop was wiped before litigation was reasonably anticipated, under a routine, consistently applied IT policy. That is the core defense: no duty to preserve had attached at the time of destruction, and the policy was not selectively applied.
Your response must show: (1) the date the duty attached (when litigation was reasonably anticipated - likely the termination or the demand letter), (2) the wipe date and the policy's routine nature, (3) that the policy is applied to all departing employees, and (4) that you took reasonable steps to recover equivalent data from other sources (mailbox, OneDrive, backups, the director's own devices if any). Under FRCP 37(e), sanctions require prejudice and, for curative measures, intent to deprive. If the wipe predates the duty and the data is substantially available elsewhere, there is no basis for either. Document the timeline now, not after the motion.